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New York’s new stance on limitation

Client Alerts17/03/2020

The state of New York has introduced The Child Victims Act 2019 (“the Act”) which contains new provisions on limitation. The Act was signed into law on the 14 February 2019 and extends the statute of limitations for a victim of child sexual abuse in both criminal and civil cases in New York. This means there is now more time for victims to press criminal charges and bring a civil claim.

Historically New York has received a lot of criticism for having one of the most restrictive statutes for crimes of child sexual abuse. However, mirroring some steps taken in other jurisdictions, and indeed other countries, this new Act has resulted in the balance swinging in the other direction.

In relation to criminal charges, a victim previously had until the age of 23 to seek to bring criminal charges for a felony crime. However, under the new Act this raises the age to 28. Significantly, the Act effectively repeals the statute of limitations on abuse civil claims. The Act is therefore a historic step forward.

The two main points to be aware of are:

  1. For all claims that have not already expired under the old statute of limitations period, the survivor of child sexual abuse will now have until the age of 55 to file a claim.
  1. For all claims that have already expired under the old statute of limitations, the Act provides a one year extension for claims to be filed. Victims will be able to seek compensation, but only if they file their claims within this one year period.

Further implications of the Act are:

  • Civil trial preferences will be given to these matters which is likely to mean that they will reach hearings/trial quicker than civil matters of a different nature.
  • It eliminates the notice of claim requirements for such actions when the action is brought against a municipality, the state or a school district.
  • The judiciary will also receive special training in dealing with cases involving child sexual abuse.

The one year period is referred to as the “lookback window.” The Act sets out that the window would commence six months after it was formally made law. It opened on 14 August 2019 and is due to expire in August 2020, but it may be extended. It is thought that there will be many perpetrators named as a result of the ability to now bring a claim when previously it has been time barred but it is likely that the biggest impact will be on institutions pursued for the damages.

Recent developments and reactions following the start of the “lookback window”

On the first day that the new law was in effect, no less than 427 lawsuits were filed in courts across the state. According to the New York Times, the major institutions likely to be affect by its impact are the Catholic Church and the Boy Scouts of America.

Catholic Church

The impact has already taken effect with the Diocese of Rochester filing for bankruptcy on 12 September 2019 after it was named as a defendant in dozens of claims filed following the start of the “lookback window”. Most recently the Diocese of Buffalo also filed for bankruptcy on 28 February 2020 after it was named as the defendant in hundreds of claims.

Boy Scouts of America

The Boy Scouts of America (“Scouts”) filed for bankruptcy on 18 February 2020. The national chairman of the Scouts, Jim Turley has stated that the organisation took this option to ensure they are able to compensate all victims through a proposed victims “compensation trust.” However others have taken the view that in fact, by filing for bankruptcy, the Scouts are attempting to avoid making any payments for any claims brought against them by virtue of the new Act, or at least any payment would take a long period of time whilst the bankruptcy is pending.

The other issue is that it is only the Boy Scouts of America, the national organisation which has filed for bankruptcy. There are 261 distinct Boy Scout local Councils that are responsible for the running of the day-to-day programs, operating local troops that have their own assets.

It has been made clear that none of these councils are seeking bankruptcy as they are legally and financially independent and therefore shielded from the abuse lawsuits. This is likely to create additional litigation to establish the position on this as the councils have not filed for bankruptcy.

USA gymnastics

USA gymnastics filed for bankruptcy in April 2019 following the sexual abuse conviction of former national team doctor Larry Nassar.

The effect of these organisation’s filing for bankruptcy means that all claims made will now be pending whilst the issue of the bankruptcy is dealt with. This also means that the bankruptcy court will set their own deadline for new claims being brought so that following this date they can deal with distribution of the assets. It is likely that this will also put a cap on the amount of damages that can be recovered limiting an organisations ability to meet these claims.

Given this loophole around the new limitation law it will be interesting to see what further developments occur in this jurisdiction around the issue of limitation and the effect that the changes in the law have on the civil claims process.

Comment

This is another interesting example of other jurisdictions seeking to grapple with the issue of limitation in abuse claims by attempting to introduce a system which strikes a balance and fairness to all parties to allow abuse claims to be brought.

This approach mirrors the recent developments we have seen in Scotland where the law of limitation had previously been considered extremely robust and strict, but has now been significantly amended to allow abuse claims to proceed.

This is also at a time when the Independent Inquiry into Child Sexual Abuse are considering the law of limitation and are looking at approaches taken in other jurisdictions and the extent to which they might be applied or adopted in the UK for non-recent abuse claims. It will be interesting to see what further developments occur in the US and other jurisdictions around the issue of limitation and the effect that these might have on the recommendations to change the law of limitation and the civil claims process in England and Wales.

Author Lauranne Nolan